Mediator’s Moment – Beginning at the End of the Matter

by Jean Stewart

Attorneys preparing for mediation would be well advised to spend some time drafting a Terms of Settlement sheet in advance of the mediation session.  This exercise presents the opportunity to be successful in multiple ways. 

First, one of the observations I have made in multiple mediations is that attorneys and their clients do not always have consensus on the client’s goals.  Reducing the “hoped-for” outcome to a simple set of reciprocal terms helps to identify the client’s real goals before the mediation begins and assists both the attorney and the client separate the grain from the chaff. 

Second, parties who have sorted their priorities into “must have” terms versus incidental, “sure, what the heck” terms have a tremendous advantage in mediation.  Instead of getting overheated in the tension of negotiations, they can stay focused on the real priorities they brought to the process and let go more easily of the peripheral issues they grew attached to during litigation or in the mediation itself.

Finally, at the conclusion of mediation, I almost always ask one of the attorneys present to take out his/her laptop and compose a Settlement Agreement for signature.  I am happy with a simple “Terms of Settlement” agreement although some counsel insist on drafting more elaborate contracts.  Regardless of the format, attorneys who have given real thought to the essential Terms of Agreement (even if only the ones they hope for) in advance of the mediation are more effective and efficient than attorneys who get distracted by the process of drafting.